Oil Well Supply Company, Limited v. Wolfe

• Decision Date: 19 March 1895
• Parties: Oil Well Supply Company, Limited, Appellant, v. Wolfe
• Court: Missouri Supreme Court

30 S.W. 145

127 Mo. 616

Oil Well Supply Company, Limited, Appellant, v. Wolfe

Supreme Court of Missouri, First Division

March 19, 1895

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

W. W Fry for appellant.

(1) The court erred in admitting evidence of the value of the leasehold property; it was irrelevant. (2) Defendant's first instruction is misleading, contradictory and not supported by the evidence; it absolutely took from the jury plaintiff's theory of the case. Birtwhistle v Woodward, 95 Mo. 113; Brownfield v. Ins. Co., 26 Mo.App. 399. (3) Defendant's third instruction should not have been given; unimportant issues should not be singled out in instructions to the detriment of prominent and important ones. Mead v. Brotherton, 30 Mo. 201; Sheedy v. Streeter, 70 Mo. 679. There was no evidence to support that part of the instruction which directed the jury to consider plaintiff's subsequent action in relation to the property. Skyles v Ballman, 85 Mo. 35. (4) Defendant's answer does not amount to a plea of payment or accord and satisfaction. The answer should aver that the property conveyed was received and accepted in satisfaction of the debt. Shaw v. Burton, 5 Mo. 478; Wilkerson v. Bruce, 37 Mo.App. 156. Plaintiff's demurrer to the evidence and motion in arrest should have been sustained. (5) The terms "mortgage" and "collateral security" in the peculiar sense in which they were used in defendant's first, third and fourth instructions were technical and should have been defined or explained to the jury. The conveyance as a "mortgage" was an equitable, not a statutory, mortgage. Atterberry v. Powell, 29 Mo. 429; Wiser v. Chesley, 53 Mo. 547; Boogher v. Neece, 75 Mo. 383; Cottrill v. Krum, 100 Mo. 397; Spark v. Ely, 22 Mo.App. 122; Ampleman v. Ins. Co., 35 Mo. 308, 317.

J. G. Trimble and George Robertson for respondent.

(1) The court did not admit improper evidence as to the value of the leasehold. It was admissible as throwing light on the nature of the transaction, especially when the object of the transfer made on the twenty-third of August was in dispute. Miller v. McCoy, 50 Mo. 214; Edwards v. Smith, 63 Mo. 119; Hall v. Morgan, 79 Mo. 47. (2) The court committed no error in the matter of giving instructions. (3) The burden of proof is always on the party who alleges that an absolute deed is a mortgage. Ringo v. Richardson, 53 Mo. 385; Worley v. Dryden, 57 Mo. 226. (4) The appellants have not set out defendant's answer in full and can not now raise any point as to its sufficiency.

Brace, P. J. Barclay, Gantt, Sherwood and Burgess, JJ., concurring in this result; Brace, C. J., and Robinson, J., dissenting. Macfarlane, J., not sitting.

OPINION

In Banc.

DIVISION ONE.

Brace P. J.

This is an action on three promissory notes, one for $ 812.59, dated June 25, 1890, one for $ 885.05, dated August 8, 1890, and one for $ 885.06, dated August 18, 1890.

Defendant's answer admits the execution of the notes and alleges that the same were given for "certain machinery and material furnished by plaintiff to be used in boring for oil in the state of Pennsylvania and alleges the want of consideration in one of said notes for the sum of $ 400, charged by said plaintiff for certain wire rope of the value of $ 400 which he never received from them but the value of which was included in said notes when he signed them." Further answering, defendant pleads payment of said notes by conveying to plaintiff a certain leasehold interest which he then owned in Pennsylvania in three oil wells, the value of which was greatly in excess of said notes, and defendant asked to be discharged with his costs.

The reply to the answer is as follows: "Now comes the plaintiff and for his reply to the defendant's answer denies that said notes sued on were paid by conveying to plaintiff a certain leasehold interest which defendant owned in Pennsylvania in three oil wells. Plaintiff says that in August, 1890, the defendant did execute an assignment of his interest in the William Maybold oil well lease in Butler county, Pennsylvania, which he claimed was an undivided one fourth interest therein, but which assignment of said interest in said lease was subject to the debts on the same. That the same was assigned to the plaintiff, not in payment and satisfaction of the notes sued on. That at the time defendant was indebted to plaintiff on his promissory notes to the amount of about $ 4,000, and that said assignment by defendant of his interest in said partnership lease was as collateral security for the indebtedness, including the notes herein sued on from the defendant to this plaintiff, and not otherwise. And plaintiff avers that said interest so conveyed was of no value and that plaintiffs have not derived any benefit or value therefrom and that no payment on account of said indebtedness has been received by plaintiffs either from said collateral security or otherwise. Plaintiff admits that defendant is entitled to a credit of $ 341.31 for one cable of that value sold to defendant, which was fraudulently appropriated from the express company, by which it was shipped to the defendant, and the value of which has been paid by the express company by written order of the defendant;" and denied the credit of $ 400 claimed.

On trial the defendant, to make out the defense set up in his answer, introduced in evidence the following instrument in writing:

"This agreement, made the sixteenth day of August, A. D. 1890, by and between A. W. Wolfe, of the city of Pittsburg, county of Allegheny and state of Pennsylvania, of the first part, and Oil Well Supply Company, limited, of the city of Pittsburg, county of Allegheny and state of Pennsylvania, party of the second part.

"Witnesseth, That said A. W. Wolfe, for and in consideration of one dollar, to him in hand paid, the receipt whereof is hereby acknowledged, as well as other good, sufficient and valuable considerations, has granted, bargained, sold, assigned, conveyed, transferred and set over, and by these presents does bargain, sell, assign, transfer, convey and set over unto the said Oil Well Supply Company, limited, its successors and assigns, all his rights, title, interest, property and claim, being the undivided one fourth of, in and to a certain lease made by William Maybold to G. C. Garner on the sixteenth day of April, A. D. 1890, on certain land in the county of Butler and state aforesaid, bounded on the north by lands of H. C. Kellerman and others, on the east by lands of C. Murrin, on the south by the public road and on the west by a public road, containing two acres, more or less, with all the boilers, engines, tubing, casing pipes, tanks, blacksmith tools, ropes and all other things whatsoever appertaining to the wells now on said land, or in the course of drilling, including the derricks and buildings thereon, and all the issues and profits. To have and to hold the undivided fourth part of said lease and lands, together with the property, rights of possession and estates in and to the undivided one fourth thereof and the boilers, engines and other apparatus whatsoever, unto the said Oil Well Supply Company, limited, forever.

"The said lease is recorded in the recorder's office of said Butler county, and the said A. W. Wolfe acquired title thereto by assignment.

"Witness my hand and seal the day and year aforesaid.

[SEAL]

A. W. Wolfe.

"Allegheny County -- ss.

"On the twenty-third day of August, A. D. 1890, before me a notary public in and for the county of Allegheny and state of Pennsylvania, residing in the city of Pittsburg, came A. W. Wolfe, the assignor above named, who acknowledges the foregoing assignment to be his act and deed and desired that the same may be recorded as such.

"Witness my hand and notarial seal the day and year aforesaid.

[SEAL]

"Henry Weiskettle, Notary Public."

And then testified as a witness that at the time this instrument was executed he was indebted to the plaintiff about $ 3,900 or $ 4,000, and that such indebtedness was the consideration for the execution thereof, and that it had no other consideration; and introduced the deposition of another witness tending to prove that the value of the leasehold interests of the defendant at the time of the execution of the instrument was equal to or exceeded the amount of his indebtedness, and then rested.

Thereupon the plaintiff demurred to the sufficiency of the evidence to make out the defense, except as to the admitted credit of $ 341.31.

The court overruled the demurrer and thereupon plaintiff introduced evidence tending to prove that, at the time the assignment aforesaid was made by Wolfe, he was indebted to plaintiff in the sum of $ 4,298.91, that said assignment was executed and delivered to the plaintiff as security for the payment of such indebtedness, and that, as a part of the same transaction, the plaintiff executed and delivered to the said Wolfe an instrument of writing, in substance as follows viz.: "It is understood and agreed that the property assigned this sixteenth day of June, 1890, by A. W. Wolfe to the Oil Well Supply Co. (limited) is to be transferred back to A. W. Wolfe when the said Oil Well Supply Co. are fully paid." Signed, "Oil Well Supply Co." Also evidence tending to prove that the whole leasehold property was afterward sold at sheriff's sale under a judgment in favor of the plaintiff against A. W. Wolfe et al., partners under the style of the Wolfe Oil Company, bought in by the plaintiff for $ 500, and afterward sold by them for $ 2,475, and that nothing was realized from the interest assigned by the defendant to be applied upon his indebtedness to the plaintiff; also evidence tending to prove recognition by the...